Bombay High Court
Sunita Kumari W/O Ram Sevak And 4 ... vs State Of Mha. Thr. Pso Ps ... on 22 December, 2022
Bench: S.B. Shukre, M. W. Chandwani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 1660 OF 2022
1. Sunita Kumari W/o. Ram Sevak,
Aged about 50 years, Occ. Household,
R/o. Plot No. 298, S.S.T. Nagar,
Upali Road, FCI Godown, Sangrur, Panjab.
2. Sau. Mamta Singh W/o. Sahabsing Azad,
Aged about 44 years, Occ. Service,
R/o. A/22, Clobk-B, Thana Hariparvat,
Agra, Dist. Agra, Uttar Pradesh.
3. Niraj Bhaskar S/o. Harivilas Bahaskar,
Aged about 54 years, Occ. Service,
R/o. Plot No A175/1, Rajendra Nagar,
Bareli, Dist. Bareli (Uttar Pradesh).
4. Nirmala Vyas W/o. Avinash Vyas,
Aged about 63 years, Occ. Retired,
R/o J4/10, Khirki Extension,
Ground Floor, Malviya Nagar,
New Delhi-110017.
5. Sau. Dipanjali Ram Sevak,
Aged about 32 years, Occ. Private Service,
R/o. Plot No. 298, S.S.T. Nagar,
Upali Road, FCI Godown, Sangrur, Panjab. . . . PETITIONERS
// V E R S U S //
1. State of Maharashtra through
Police Station Officer,
Police Station Hudkeshwar, Nagpur.
Dist. Nagpur.
2. Sau. Ruwal W/o. Akash Bhaskar,
Aged about 30 years, Occ. Housewife,
R/o. Shyambihari Gautam,
Plot No. 9, Indira Nagar,
Narsala Road, Nagpur. . . . RESPONDENTS
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Shri D. V. Mahajan, Advocate for applicants.
Shri S. M. Ghodeswar, APP for non-applicant no. 1/State.
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CORAM :- SUNIL B. SHUKRE &
M. W. CHANDWANI, JJ.
DATED :- 22.12.2022
ORAL JUDGMENT (PER: SUNIL B. SHUKRE, J.):-
Heard learned counsel for the applicants and learned APP
for State, who has assisted this Court.
2. This is application filed under Section 482 of the Code of
Criminal Procedure (Cr.P.C.) for quashing the First Information Report
(FIR) vide Crime No. 201/2022, registered for offences punishable
under Sections 498-A, 323, 524 read with 34 of the Indian Penal Code
(IPC) and under Sections 3 and 4 of Dowry Prohibition Act and also
consequent charge-sheet registered as Regular Criminal Case No.
2688/2022 pending before Court of Judicial Magistrate First Class,
Nagpur.
3. We have not yet issued any notice to the non-applicants as
we would like to consider as to whether or not the applicants have any
case deserving issuance of notice on merit to the non-applicants. In
order to satisfy this Court on this aspect of the matter, learned counsel
for the applicant has submitted his argument and also prayed for grant
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of stay to the criminal proceeding initiated in pursuance of charge-
sheet no. 183/2022, bearing R.C.C. No. 2688/2022 pending before the
Court of Judicial Magistrate, First Class, M. V. Court, Nagpur. We have
also heard learned APP.
4. Learned counsel for the applicants submits that the
husband of non-applicant no. 2 (complainant) - Akash Bhaskar has not
filed this application but the distant relatives have filed this
application, seeking quashing of the criminal proceeding. He submits
that there are neither any specific allegations made against any of
these applicants nor is there any material showing that any of these
applicants had resided together with non-applicant no. 2 and her
husband nor any of these applicants fall within the definition of the
relatives, so as to attribute to them any such cruelty as is
complemented under Section 498-A of the IPC. He further submits
that even the Court of Additional Chief Judicial Magistrate has closed
the Domestic Violence proceeding against respondent no. 2 therein i.e.
applicant no. 1- Sunita Kumari W/o. Ram Sevek on the ground that
she never shared any household with non-applicant no. 2 herein. He
places reliance upon the case of U. Suvetha Vs. State by Inspector of
Police [(2009) 6 SCC 757].
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5. According to the learned APP for the State, if one reads
carefully the FIR and also the statements of witnesses, one would find
that there is sufficient material, which would necessitate framing of
charge against the applicants and they being put on trial as there are
specific allegations made against each of the applicants, which prima
facie amount to cruelty within the meaning of Section 498-A of the
IPC. He also submits that the facts of case of U. Suvetha (supra) being
different, the case is not applicable to the facts of the present case.
6. No doubt, the applicants appear to be residing at some
different places than the marital residence of non-applicant no. 2 but,
the allegations contained in the FIR and also statements of witnesses
do indicate that there used to be several occasions, when all these
applicants or some of them had on one or the other occasion gathered
together in the house, where non-applicant no. 2 had resided and
these applicants, on different occasions, also had opportunities to talk
personally or on telephone with non-applicant no. 2 and during their
such encounters with non-applicant no. 2, at the house where non-
applicant no. 2 resided or on telephone, they subjected non-applicant
no. 2 to humiliation, harassment and cruelty.
7. These allegations in the FIR some of which can be found
in the statements of the witnesses show that these applicants, prima
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facie, subjected non-applicant no. 2 to humiliation, harassment and
cruelty of such a nature as is contemplated under Section 498-A of the
IPC and therefore, we are of the view that there is prima facie case
made out against each of the applicants, inspite of their sometimes
residing away from the place where non-applicant no. 2 resided. One
cannot forget the fact that cruelty as envisaged under Section 498-A of
the IPC is not only physical, it also takes within its fold several other
forms of cruelty, including mental cruelty. The mental cruelty is an
abstract concept and it is a matter of experience for a person who is
subjected to cruelty. Many a times certain taunts are made against
another person but it all depends upon the manner in which the
person takes those remarks or responds to them. Sometimes, the
taunts might be seen to be innocuous by one person, while they may
not be necessarily so perceived by another person. There are also
certain derogatory remarks, which have been held by Supreme Court
to be presumptively constituting cruelty within the meaning of Section
498-A of the IPC, as for example consistently suspecting fidelity of wife
{See A. Jayachandra Vs. Annel Kaur [(2005) 2 SCC 22] }. Such being
the nature of mental cruelty, it is not necessary that it must take place
in the physical presence of persons and that it can be handed out even
from a distant place. Here, in this case, for meting out mental cruelty
to non-applicant no. 2, of course, in prima facie way, these applicants
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seems to have employed modern means of communication i.e.
telephone etc. and on many occasions, they have also remained
present in the company of non-applicant no. 2. Therefore, this is not a
case where the applicants, by virtue of their separate residence, could
be presumed to not have treated non-applicant no. 2 in a cruel
manner.
8. In fact, as stated earlier, there is sufficient material present
on record which is indicative of the mental cruelty handed out by each
of these applicants to non-applicant no. 2. This can be seen from the
allegations made against each of the applicants in the FIR and also
from the statements of witnesses. Besides, there is a reference to
influential position of Mamta Singh- applicant no. 2. She has been
stated to be working in Police Force. There is an allegation against her
that she used to say to non-applicant no. 2 that she must accept the
demand and obnoxious behavior of her husband- Akash Bhaskar,
failing which she would use her influence as a Police to scuttle any
criminal proceeding, which might be initiated by non-applicant no. 2.
If such is the nature of the allegation, which is quite serious, it is all the
more reason for this Court to direct that all these applicants are put on
trial, apart from the fact that there is already sufficient material
available against each of them for framing of charge in terms of Section
240 of the Cr.P.C..
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9. As regards the contention that the applicants being not
relatives, no case under Section 498-A of the IPC can be made out, we
find that this contention is without any water. We also find that
reliance placed by learned counsel for the applicants on the case of
U. Suvetha (supra) is improper for the reason that the facts of
U. Suvetha (supra), as rightly stated by learned APP, are entirely
different. In that case, the charge of cruelty was made against the
paramour of the husband and the paramour of the husband being not a
relative, being another woman, having no relation whatsoever with the
husband either by blood or marriage, the Apex Court found that no
case under Section 498-A of the IPC was made out. On the contrary,
we find that the case of U. Suvetha (supra) renders good assistance to
the prosecution's case In that case, the Supreme Court has observed
that the term "relative" has not been statutorily defined but, its
meaning could be ascertained from the ordinary sense in which it is
understood and this could be done by making a reference to the
definition of the term "relative" given in dictionary. By considering
dictionary meaning of the term "relative", the Apex Court held that the
meaning of word "relative" would depend upon the nature of status of
persons which would be of those persons who are related by blood,
marriage or by adoption and that by no stretch of imagination could it
be said that a girl friend or a concubine could be considered to be
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relative. In para no. 18, it has been observed by the Supreme Court
that the word "relative" brings within its purview a status and then it
has went on to explain it as something which is conferred either by
blood, marriage or adoption. Therefore, the argument that a distant
relative would be out of scope of Section 498-A of IPC cannot be
accepted and it is rejected.
10. Learned counsel for the applicants submits that merely
because husband of non-applicant no. 2 had illicit relation with
applicant no. 5, that by itself would not constitute any cruelty on the
part of the applicant no. 5 and this is where the case of U. Suvetha
(supra) supports him. Learned counsel for the applicants is partially
right when he says that insofar as concerned the other woman
involved in the private life of the husband, here it is applicant no. 5,
no offence of cruelty punishable under Section 498-A of the IPC would
be made out against the other woman. But, here the offence of cruelty
under Section 498-A is prima facie made out against applicant no. 5
not in the context of her status as other woman but, in her capacity as
a cousin sister of the husband of non-applicant no. 2, against whom
specific allegations, prima facie constituting cruelty have been made.
11. Learned counsel for the applicant submits that in none of
the statements of the witnesses, the names of any of these applicants
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have been taken and even though their names are taken in the FIR,
that being merely a FIR, no significance could be attached to the
allegations made in the FIR.
12. As regards the contention that no significance could be
attached to the allegations made in the FIR, we beg to differ with
learned counsel for the applicants. The FIR is something which sets
the criminal law in motion and though usually not a substantive piece
of evidence by itself, it nevertheless forms a foundation of a criminal
case. No strong edifice of a criminal case can be built unless its
foundation is sound. If the FIR does not contain allegations of cruelty,
no criminal case can be built against the persons shown as accused in
the FIR. But, when foundation is strong, it would give rise to a strong
criminal case, which is what seems to be the case here in a prima facie
way. About the other contention, we find from the statements of
witnesses recorded under Section 161 of the Cr.P.C. that the submission
of learned counsel for the applicants is completely untrue. Names of
these applicants have been taken in the Police Statements and even
specific allegations are made against each of them. The witnesses are
saying that Nirmala Vyas, Mansi Vyas, Niraj Bhaskar, Sweety and other
persons were involved in making active demand of dowry or money as
a consideration for continuation of marriage of non-applicant no. 2
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with Akash Bhaskar. These witnesses are Sau. Sunita Goutam and Shri
Shambihari Gautam.
13. As regards closure of Domestic Violence proceedings, we
would say that it is something which would have to be considered on
its own merit, which would be possible only when trial is held. For the
purpose of this application filed under Section 482 of the Cr.P.C., we
have to go by the principles laid down in the case of State of Haryana
Vs. Bhajan Lal and others [1992 AIR SC 604] , which require that
nature of allegations must be examined by taking them at their face
value and when so taken, if they are found to be constituting an
offence, inherent power of the High Court under Section 482 of the
Cr.P.C. to quash the FIR must not be exercised. We have already found
the allegations against the applicant to be so.
14. Thus, we find no merit in the submission of learned
counsel for the applicants, and also in this application. We rather find
that the applicants have abused the process of law by filing this
application inspite of the fact that they are aware of the allegations
made against them and which are of a nature which require their
consideration on merits. So, reasonable costs need to be imposed
upon the applicants.
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15. In the result, the application is dismissed with costs of
₹10,000/- (Rs. Ten Thousand) to be deposited by the applicants,10,000/- (Rs. Ten Thousand) to be deposited by the applicants,
within three weeks from the date of order, with the High Court Bar
Association, Nagpur for the purpose of development of library.
16. If the costs are not deposited within the stipulated period,
same shall be recovered from the applicants by the registry, in
accordance with law, treating the costs as fine imposed by this Court.
(M. W. CHANDWANI, J.) (SUNIL B. SHUKRE, J.)
RR Jaiswal
